FIFTH AMENDMENT DUE PROCESS VIOLATION IN YELLOW HOUSE CASE

Claimant’s right to possession of seized property

We contend that the government's retention of seized property without commencing some sort of proceeding would violate the Constitution if the delay took on "unreasonable proportions."

Property was seized during the execution of several search warrants. However the Dec. 2005 warrant specifically named 20 items to be seized. Officers executing the warrant seized over 100 pieces of merchandise and property from the business. Clearly violating the limits of the search warrant.

No proceedings ever took place to determine through the court whether the retention reasonably related to the government's interests in the property.

Criminal proceedings and Indictments only took place after requests and formal complaints were turned in alleging the Lawrence Kansas police department officers involved in the investigation were guilty of police misconduct, had violated the chain of evidence rules, violated the search warrants, took property without probable cause and valuable seized property from the execution of the warrants was officially missing from the LKPD evidence room.

Continued retention of this enormous amount of property lacking evidentiary value without the right of due process has violated the defendants Fifth Amendment due process rights.

Because much of the property seized, such as but not limited to; laptops and desktop computers, electronics and video games and important business financial records has lost a considerable amount of its core value, in accordance with the number of years it has been held, the defendants have been greatly prejudiced by the loss of ownership.

In Lowther v. United States, 480 F.2d 1031 (10th Cir. 1973), the court based such a holding on the premise that continued retention of evidence would constitute a taking without just compensation. In United States v. Moore, 423 F.Supp. 858 (S.D.W.Va.1976), the court relied on its supervisory power to govern the scope of the government's subpoena power, but also noted possible constitutional underpinnings to the limitation on retention of property seized.

In Shea v. Gabriel, supra, the Court of Appeals for the First Circuit indicated that, in evaluating the retention of seized property, a court must weigh the interests of the government in holding the property against the owner's rights to use the property. As a part of this balance, the court noted that the government should not be permitted to hold the property for an unreasonable amount of time before prosecuting or bringing other dispositive action. 520 F.2d at 882. The length of time the property has been held in this case, without regards to its evidentiary value has clearly imposed an impermissible burden upon the defendants. Thus resulting to a forfeiture without the procedures required by statute and by due process of law.

IN CONCLUSION
The government has failed to uphold the defendants Guy and Carrie Neighbors right to an evidentiary hearing; in so doing the court has failed to balance these citizen's interest in use of their property against the wide-ranging governmental interests of the U.S. Attorney and in law enforcement. Due to the continued unreasonable retention of the enormous amount of seized property that holds no evidence or prosecutorial value, the defendants in this case have been deprived their Fifth Amendment right of property ownership without due process of law.